REVIEWS
| DOI | http://doi.org/10.1111/j.1468-2230.1939.tb00749.x |
| Published date | 01 June 1939 |
| Date | 01 June 1939 |
76
MODERN LAW REVIEW
June,
1939
REVIEWS
CARDOZO
AND
FRONTIERS
OF
LEGAL
THINgING.
By BERYL
HAROLD
LEVY.
New York
:
Oxford University Press.
$2.60.
London
:
Humphrey Milford,
1938.
xv
+
315
pp.
10s.
8d.
Since the passing of Mr. Justice Holmes, the brightest judicial luminary
of the American legal scene has been
his
successor on the Supreme Court
of the United States, Benjamin
N.
Cardozo, previously Chief Judge of
the powerful Court of Appeals of the State of New York. Cardozo’s death
last year at the comparatively early age
of
sixty-eight, after only six years
of service on the Supreme Court, is an inestimable loss not only to the
American bench but to legal scholarship. For Cardozo was no ordinary
appellate judge. Not only was he a common law judge in the tradition
of Mansfield and an equity judge in the tradition of Hardwicke; not only
was he
a
worthy successor to Holmes in the delicate task of constitutional
adjudication which forms the main preoccupation of the highest court of
the United States; he also has told us more than any other of the actual
method and technique of judicial decision and has written with rare
grace and profound insight of the permanent problems of law and juris-
prudence. Between
1922
and
1928,
while a member of the highest court
of New York, there appeared from his pen three small volumes-The
Nature
of
the
Judicial Process, The
Growth
of
the
Law, and The Paradoxes
of
Legal Science-which rank with the classics of juristic thinking. More
than any judge of the last generation, he influenced and remade American
private law
;
in
his
brief service on the Supreme Court, he helped mightily
to give a new direction to constitutional decision
;
he contributed signifi-
cantly to understanding of the judicial process under the Anglo-American
tradition
;
by the gentle force
of
his character he made himself loved and
respected as few judges have ever been.
Much has been written about Mr. Justice Cardozo before and since his
death. While Dr. Levy’s volume falls in the former category, it appeared
after the public career of its subject had ended, and
so
is
not forced into
the dubious incompleteness of most studies of living great men. In the
book, Dr. Levy has attempted two things: First, to present
a
picture of
Cardozo and his mode of thought and decision in relation to present cur-
rents of American juristic thinking; and second, to place before the
reader a selected group of representative opinions by Cardozo himself.
These attempts require separate appraisal.
Dr. Levy’s own treatment makes up a little more than a third of the
whole book. In length and form
it
is an essay. In substance,
it
is
an
anthology of quotations, mostly from Cardozo, connected by brief com-
ments by Dr. Levy himself, with an occasional excursus into contemporary
American jurisprudence or philosophy.
I
must admit to some puzzle-
ment as to the character of the beneficiaries of these discussions.
Is
the
book for lawyers, for students of jurisprudence, for educated laymen, or
for whom?
To
take
but
one example, Dr. Levy discusses
at
some length
(pp.
39-46),
under the provocative heading “A Dying Myth,” the old ques-
tion whether judges make or only declare the law.
If
this discussion
is
for lawyers, it is for those who still live in the last century.
If
it
is for
students of jurisprudence,
it
assumes in them an amazing naivete and
ignorance of tte literature of their subject.
If
it
is
another attempt of
the many current attempts at adult education
of
the “intelligent layman,”
REVIEWS
77
it is likely to convey
a
false sense of the character
of
the problem and how
it
has been dealt with in legal thought. The fact is,
I
suspect, that Dr.
Levy has not thought his problems through, nor has he definitely decided
what kind of
a
book he wanted to write. He has read widely. He shows
some flashes of insight,
as
where he points out that the “method of
sociology
”
described in Cardozo’s
Nature
of
the Judicial Process
is
rather
a
method of ethics (p.
61).
Reside Cardozo and Holmes, he knows of the
current American writers on jurisprudence and philosophy
;
but his
method is anthologicai and his purpose uncertain. The main value of the
first part
of
the book lies in those parts which Mr. Justice Cardozo has
written.
The latter two-thirds of the book is all Cardozo. Dr. Levy has reprinted
twenty-two selected opinions in cases decided from
1914
to
1937.
All but
one
of
these were written by Cardozo while on the Court of Appeals
of
New
York. The one Supreme Court opinion
is
that upholding
as
constitu-
tional the old-age benefit provisions
of
the Social Security Act
of
1935.
Of course no selection of the opinions of any judge
is
likely to prove
wholly satisfactory
to
anyone other than the person making the selection,
and
it
does not do to be
too
captious. But
it
does seem that some better
criterion of choice could have been found than that of including one
opinion by Cardozo “in each major field of law listed by the New York
Board
of
Bar Examiners”
(p.
122),
especially when some of the selected
cases do not in fact fall within the fields which they are said to represent.
If
the selection
is
to be by subject,
Palsgraf
v.
Long Island
R. R.
Co.,
248
N.Y.
339 (1928)
(p.
124).
may well represent Torts, but not to the exclusion
of
McPherson
v.
Buick
Motor
Co.,
217
N.Y.
382 (1916).
a
decision that
has had
its
influence across the Atlantic. See
Donoghue
v.
Stevenson,
[1g32]
A.C.
562.
The choice of
Globe Woollen
Co.
v.
Utica Gas
&
Electric
Co.,
224
N.Y.
483 (1918)
(p.
I~o),
as representative of Cardozo’s decisions
in Equity is little short of absurd. There would have been illumination
in the inclusion of
Epstein
v.
Gluckin,
233
N.Y.
490
(1922),
which gave
a
quietus
to Lord Justice Fry’s artificial doctrine of mutuality of remedy
in
specific performance, or of the vigorous dissenting opinion in
Graf
v.
Hope Building Corporation,
254
N.Y.
I
(1930).
where Cardozo’s words bring
to mind the classical days of English equity. And how could Dr. Levy
include
People
ex rel.
Lehigh Valley
Ry.
Co.
v.
Stale Tax
Comntission,
247
N.Y.
g (1928)
(p.
235),
as
a
decision on Public Utilities?
It
involved
a
public utility
as
relator, but
it
is
a
tax
case only. However, though we
may quarrel with the selection
of
opinions, there can be no quarrel with
the opinions themselves. They can be read not only as law but as litera-
ture, and
it
is good to have some of them thus assembled.
In January,
1939.
there was published jointly by the
Law
Reviews
of
Columbia, Harvard and Yale,
a
memorial number to Mr. Justice Cardozo.
If
any reader seeks
a
view
of
Cardozo’s life and work presented with
understanding and significance, let him read the articles which that issue
contains. Let him read especially the brief tributes by Cardozo’s associate
on
the Supreme Court, Mr. Justice Stone, by Mr. Justice Evatt of the
High Court of Australia, and, most moving of all, by that great American
federal judge Learned Hand. Let him learn of Cardozo’s influence on
the New York Court of Appeals from his associate there, Judge Lehman,
and of his influence on the American law
of
contract and tort from two
masters in those fields, Professor Corbin of Yale and Professor Seavey
of
Harvard
;
finally, let him study Cardozo’s contributions to American
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